The Mississippi Court of Appeals handed down eight opinions on Tuesday. There are some interesting opinions in there including three opinions with civil procedure issues that civil litigators should take a look at. One deals with the discovery rule and the savings statute after a voluntary dismissal, another deals with a Rule 41 dismissal for want of prosecution, and the other deals with a Rule 56(f) motion in a med mal case.
The Supreme Court will not hand down decisions this week due to the Thanksgiving holiday. Have a Happy Thanksgiving!
Burns v. BancorpSouth Bank, 2022-CA-00404-COA (Civil – Contract)
Affirming dismissal of breach of contract and negligence claims that two banks were liable for not preventing an elderly lady’s caregiver from stealing money from bank accounts, holding that the claims against the banks were barred by the three-year statute of limitations.
(8-1-0: Wilson concurred in part and in the result without separate written opinion; Greenlee did not participate)
Harper v. State, 2022-KA-00659-COA (Criminal – Felony)
Affirming conviction of attempted statutory rape and fondling, holding that the trial court did not err by admitting the victim’s out-of-court statements without determining whether the tender-years exception applied because the victim’s teacher’s testimony about what the victim said was not offered to prove the truth of the matter asserted and that the forensic interviewing expert’s testimony did not constitute hearsay, and dismissing the ineffective assistance of counsel claims without prejudice.
(8-2-0: Enfinger concurred in part and in the result without writing and McDonald concurred in the result only without writing)
Agee v. State, 2022-KA-00994-COA (Criminal – Felony)
Affirming conviction of aggravated assault, holding that the Court did not err by imposing restitution and that the defendant waived that issue by not objecting during sentencing.
(9-1-0: Westbrooks concurred in the result only without writing)
Clearman v. Pipestone Property Services, LLC, 2022-CA-00651-COA (Civil – Personal injury)
Affirming the circuit court’s dismissal of slip-and-fall claims against a contractor and subcontractor who provided snow and ice removal services for a grocery store on statute of limitations grounds, holding that the “discovery rule” did not apply, the voluntary dismissal of a timely federal court lawsuit against the grocery store did not bring the claims against the contractor and subcontractor within the ambit of the “savings statute,” and the doctrine of equitable tolling did not apply.
(10-0)
Galvan v. State, 2022-KA-00655-COA (Criminal – Felony)
Affirming conviction of statutory rape, sexual battery, gratification of lust, and incest, holding that the trial court did not err by not appointing an interpreter or by admitting the defendant’s statements to law enforcement, that the defendant waived objections based on the Confrontation Clause, that there was sufficient evidence to support the incest conviction, and that the defendant failed to prove ineffective assistance of counsel.
(9-1-0: Carlton concurred in result only without writing)
Rawlings v. Rawlings, 2022-CA-00919-COA (Civil – Domestic Relations)
Affirming the chancellor’s denial of the ex-wife’s request for attorney’s fees after denying the ex-husband’s request for alimony modification, holding that she was not entitled to attorney’s fees under the marital dissolution agreement providing that the prevailing party in an enforcement action was entitled to attorney’s fees because this was an action to “modify” the agreement not “enforce” it.
(10-0)
Scott v. UnitedHealthcare of Mississippi, Inc., 2022-CA-00963-COA (Civil – Insurance)
Affirming dismissal for want of prosecution where an 18-month period of inactivity followed the filing of the compliant, interrupted only by some activity prompted by the circuit clerk’s notice of intent to dismiss under Rule 41, that then followed by another 18-month period of inactivity and a second Rule 41 notice, holding that the trial court did not abuse its discretion in dismissing the case even though the plaintiff filed a “Motion to Leave Case on the Docket” after the second Rule 41 notice and that the Court otherwise had inherent power to dismiss for want of prosecution.
(8-2-0: McDonald and McCarty concurred in part and in the result without writing)
NOTE – The Court was not persuaded by the plaintiff’s efforts to assign blame to the COVID pandemic. The plaintiff argued:
The Court addressed this argument later in the opinion:
Hogan v. Hattiesburg Clinic, P.A., 2022-CA-00650-COA (Civil – Medical Malpractice)
Affirming the circuit court’s denial of the plaintiffs’ 56(f) motion filed the day before the motion for summary judgment hearing, holding that the plaintiffs’ 56(f) motion did not mention the need to obtain additional expert medical opinions and the plaintiffs had not otherwise shown that additional expert opinion could establish proximate cause.
(8-1-0: McCarty concurred in part and in the result without separate written opinion; Carlton did not participate.)
Other Orders
Love v. State, 2021-CP-01101-COA (denying rehearing)
Mississippi Appeals Blog 